Legalizing Pot Won’t Empty Jails

One of the chief justifications for the rush to marijuana legalization across the United States is that too many people are behind bars for pot use. Legalize marijuana, advocates say, and we can go a long way toward reducing our record high rate of incarceration.

It’s a good talking point. But there are no good data behind it.

A survey by the Bureau of Justice Statistics showed that 0.7 percent of all state inmates were behind bars for marijuana possession only, with many of them pleading to marijuana possession instead of facing charges for more serious crimes. And that same survey showed that just 0.1% of all state prisoners were incarcerated for marijuana possession offenses and had no prior sentences. More broadly, on the federal level, only 0.9 percent of people entering federal prison in 2014 were convicted of simple possession of any drug.

So what is the real problem here? It certainly isn’t the issue of incarceration alone.

Yes, there are plenty of people who violate their terms of probation or parole by testing positive for marijuana. And it’s true that in some places a marijuana arrest record can stay with someone for a long time — denying them access to education and employment. We can and should change those aspects of our criminal justice system.

But to pretend that legalizing marijuana — or even other drug — possession will have any meaningful impact on incarceration is just plain wrong.

Repeated drug use usually doesn’t happen in a vacuum, with no consequences to family or community. In fact, a key driver of crime often comes from those who either need money for drugs (which would be the case whether or not drugs were legal) or commit crimes while under the influence of drugs. And pot isn’t an exception. As RAND researchers found, there is a relationship between pot use and property and “income producing” crimes (including robbery, burglary and car theft) to an extent that it “suggest[ed] a causal interpretation” between the two.

The relationship between crime and drug use generally goes even deeper. According to the National Association of Drug Court Professionals, about three of every five arrestees for most crimes test positive for an illicit drug, and almost four of every five offenders abuse drugs or alcohol.

So the issue is not really drug possession, but rather is other, more serious criminal activity that drug abuse and addiction can foster. But you won’t hear that in the legalization sound bites.

Moreover, you won’t hear anything from that corner about the astonishing success the United States has had in developing alternatives to incarceration for those with substance use disorders, through the concept of the drug treatment court. These courts, broadly speaking, divert certain defendants with diagnosed drug addictions to a special court that allows them to avoid jail if they successfully complete court-supervised (and funded) treatment. Judges and treatment providers work hand-in-hand to solve the underlying addiction driving the criminal behavior, without jail.

This alternative approach works. Extensive studies indicate that drug treatment courts can reduce recidivism as much as 45 percent more than other sentencing options. Nationwide, 75 percent of defendants who successfully complete this system court-supervised treatment remain arrest-free at least two years after leaving the program. And this means savings, as well — for every dollar spent on these courts, taxpayers save as much as $3.36 in criminal justice costs.

In fact, the model has been so successful that countries across the globe have adopted it — including nations where simple drug possession has already been decriminalized nationwide, like Mexico. Again, the issue is not simple drug possession, it’s the other crimes fueled by drug abuse. For the person committing crimes related to their substance use disorder, drug court programs provide the right incentives to change behavior and keep communities safe.

Drug courts and other programs like it (such as HOPE-like programs reforming probation across the country) show that the criminal justice system — necessary for dealing with serious crimes — can work with a public health model.

Because of the therapeutic nature of these programs, one therefore might expect drug legalization proponents to embrace this model even more than those who oppose legalization.

Curiously, legalization advocates never really had a problem with models like drug treatment courts until the marijuana legalization movement gained traction. What happened next was an exercise in cynicism. Former alternative-sentencing advocates turned on their allies, making unfounded claims about their efficacy and suggesting that they were incompatible with drug legalization.

In reality, the issue is not one of logical incompatibility, but political incompatibility — the true issue is optics. The very success of the drug treatment court model — which clearly underlines the link between drug addiction and crime — threatens the political support of the legalization movement and those seeking to profit from it. It is in their best interests to minimize the harms of drug use and to even deny the mountain of scientific evidence showing that drug addiction is a brain disease. To point out the very real nexus between addiction and crime, and the societal problems it portends, is to challenge the basis for the entire movement to allow for a commercialized market selling not only marijuana, but also heroin and cocaine.

We know that we can’t treat drug addiction with jail, or arrest our way to a drug-free society, but legalization solves neither our country’s drug addiction problem nor the crime associated with it. Worse still, as states like Colorado show, legalization creates a commercialized, legal addictive industry like Big Tobacco that encourages consumption and preys on the young and marginalized.

Jeff Zinsmeister contributed to this article.